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Monday, November 26, 2007

Inside the Beltway views on crack amendment retroactivity

In addition to the Justice Department, some members of Congress have expressed opposition to the US Sentencing Commission making its new crack guidelines retroactive. In an letter to the USSC Chair earlier this month (and available for download below), 13 members of the House urged the USSC "not to apply this amendment retroactively." Avid sentencing fans will not be surprised by the names appearing on this letter.

Meanwhile, today's Washington Post has this new editorial urging the USSC to make the new guideline retroactive and urging further congressional action on crack sentences. Here is how it starts:

This month, a measure of rationality was injected into federal sentencing guidelines when more lenient penalties for crack cocaine became the law of the land. The new guidelines will affect defendants convicted in the future, but they also should be made retroactive. That would bring some measure of equity to thousands of offenders -- roughly 85 percent of them African American men -- already serving unjustifiably long prison terms.

Wednesday, November 21, 2007

Transcript from USSC hearing on crack retroactivity

Many folks this holiday season are likely thankful that the US Sentencing Commission seems poised to make its new crack guidelines retroactive. And, thanks to the magic of websites, these folks can now read a transcript from the USSC's November 13, 2007, public hearing on this issue at this link.

Monday, November 19, 2007

Thoughtful review of crack amendment retroactivity debate

At FindLaw, Mark Allenbaugh and Paul Hofer have this effective new piece discussing the debate over the US Sentencing Commission's new crack amendments. The piece is entitled "The U. S. Sentencing Commission Considers Shortening Terms for Imprisoned Crack Offenders: Should the Reduction of the Disparity Between Crack and Powder Cocaine Sentencing Be Retroactive?". Here are excerpts:

On November 13, the Commission held a day-long hearing in Washington, D.C., to consider the retroactivity question, after having received over 30,000 letters in support of retroactivity....

The hearing demonstrated the willingness of the Commission, the federal judiciary, the defense bar, and many others to work together to correct a longstanding injustice in federal sentencing. Despite these efforts, however, the Commission made clear when it promulgated the crack amendment that it represents "only a partial solution to some of the problems associated with the 100-to-1 drug quantity ratio. Any comprehensive solution to the 100-to-1 drug quantity ratio would require appropriate legislative action by Congress." In particular, the mandatory minimum penalty statutes need to be repealed or amended to reflect the actual seriousness of crack offenses.

The behavior of offenders who benefit from the Commission's actions through early release will also affect future efforts to reform our nation's harsh drug laws. All eyes will be on them to see how responsibly they handle the earlier freedom the Commission might make possible. A return to addiction or crime will make future reform more difficult, and will disappoint the many supporters who worked to make crack penalties more just.

Near the end of the hearing, Julie Stewart, testifying for Families Against Mandatory Minimums, asked persons in the audience with family members in prison to stand and make their presence known. The room fell silent as mothers, fathers, siblings, and children who had traveled to Washington from around the country rose and held aloft pictures of their loved ones who are still behind bars.

Wednesday, November 14, 2007

Media coverage of crack retroactivity hearing

How Appealing collects here some of the major media coverage of yesterday's debate over retroactive application of the new crack guidelines before the US Sentencing Commission. This Washington Post piece provides this information about a likely timeline for the USSC's decision:

The commission, comprising seven voting members appointed by President Bush and former president Bill Clinton, is scheduled to meet today, but a vote on retroaction is unlikely. Individuals familiar with the panel's deliberations who spoke only after receiving a promise not to be identified said the commission is likely to vote on retroaction in January. A spokesman for the group declined to discuss its plans.

Meanwhile, this New York Sun piece suggests that Rudy Guiliani is against retroactivity, although it appears the paper is itself trying to drum up a controversy"

In response to a question from The New York Sun yesterday, Mr. Giuliani said he was not familiar with the details of the proposal, but added that his experience as a prosecutor made him wary of a surge of thousands of ex-offenders onto the streets.

Tuesday, November 13, 2007

A report on the USSC crack retroactivity hearing

I am pleased to be able to provide, thanks to a person self-described as a "DC Wonk," this informative report sent to me by e-mail concerning today's US Sentencing Commission hearing about the possible retroactive application of the new crack guidelines:

I have no experience reading tea leaves, but it sure seemed to me that the USSC is grappling with *how* to implement retroactivity, not *if* they should. That they will vote to implement seems a foregone conclusion.

The major issue seemed to be: would Booker apply to an inmate who was initially sentenced before Booker, and is now applying to get his sentenced reduced under retroactive application of the two-level reduction. Those who are against retroactivity argued that "of course it applies," as they tried to demonstrate the huge caseload that will clog up the entire federal court system. (Repeated cites to the figure of 19,500 to whom retroactivity might apply.) One of the commissioners noted that Booker would apply according to Hicks, but that Hicks is only applicable in the 9th Circuit where only 500 of these 19,500 are; but that the 4th Cir views otherwise, and 5,000 (of the 19,500) reside there.

Another interesting observation: for the most part everyone was polite and cordial, with one exception. The spokesperson for DOJ, the USA from West NC was pretty extreme in her language (most of her presentation was anecdote) and a bit misleading with some of her stats. She was the only witness (as of 1:00 pm) to face any hostile questioning. If anyone was wavering (itself a dubious proposition), she did her cause damage.

Most interesting was Prof Chanenson (Villanova) who argued that 3582(c)(2) was *not* a resentencing, but more like an "equitable sentencing procedure", and therefore Booker had no relevance, and that the USSC and/or Congress would have the right to make this retroactivity fairly restrictive (so as to minimize the burden on the courts, on the Marshals who have to transport prisoners, etc.) The Prof had a number of other suggestions to minimize the impact of resentencing on the federal system, and the USSC seemed most interested....

All in all, a few commissioners seemed to almost openly support retroactivity (particularly Castillo, Howell, and Sessions); I suspect Hinojosa is sympathetic (although he was "above it all" as chair); John Steer said that he agreed with the Prof that Booker wouldn't apply; Horowitz seemed sympathetic; Friedrich asked a question that was unflattering to DOJ.

In summary here: there were some statements that seemed to indicate favor to retroactivity, and some neutral. I didn't see any from any Commissioner to indicate s/he was against. I find it hard to see how anyone can scrounge four votes against retroactivity....

I am very pleased to hear that the Commissioners were in sync with Professor Steve Chanenson's insights. I had the good fortune to talk with Steve as he was putting together his testimony, and I agreed with 99.9% of what he was planning to say to the USSC. I have provided for downloading below Steve's written testimony, which is both effective and fascinating on many levels.

Monday, November 12, 2007

USSC hearing testimony on crack amendment retroactivity

Over at its website, the US Sentencing Commission now has lots of the witnesses' written testimony linked to this planned agenda for the all-day public hearing tomorrow at Georgetown University Law Center concerning whether the USSC's new crack guidelines should be applied retroactively to previously sentenced defendants. I do not see anything too surprising in the testimony now linked there, though I still expect the hearing will be quite eventful (especially with FAMM encouraging its members to attend).

I hope attendees will take good notes and perhaps send me reports for posting. I am especially interested to hear if the Commissioners indicate when they expect to make their decision on retroactivity. As this article in the Los Angeles Times highlighted this morning, this crack retroactivity decision may be the single most consequential decision to be made by the USSC since the initial guidelines were first promulgated 20 years ago. (This archive of my crack coverage provides plenty to review in anticiaption for Tuesday's hearing.)

UPDATE: The Washington Post has this front-page article in its Tuesday edition entitled "Sentences For Crack Offenses Studied; Thousands Could Be Released Soon." The piece highlights the racial dimensions of the retroactivity issue: "Nearly 86 percent of inmates who would be affected by the change are black; slightly fewer than 6 percent are white. Ninety-four percent are men."

Also, the Post has this strong op-ed by former Judge Paul Cassell entitled "Repairing a Crack in the System." He responds to some of the Justice Department's advocacy against retroactivity:

[T]he Justice Department "strongly opposes" such a move. In a letter to the commission, the department expressed concern about the "sweeping impact" retroactive application would have. This curious, misery-loves-company argument seemingly suggests that the commission should correct small injustices, but not significant ones.

The department also argues that re-sentencing offenders would "impose enormous and unjustified costs" on the federal court system. But even the department's possibly exaggerated estimate, in the millions of dollars, would be dwarfed by the more than $1 billion that could be saved by releasing prisoners early from expensive prison cells.

Effective coverage of crack retroactivity debate

The Los Angeles Times has this new extended article highlighting the import and significance of the debate over whether to make the new crack sentencing guidelines retroactive. Here are snippets of the piece:

Under pressure from federal judges, inmate advocacy groups and civil rights organizations, federal authorities are considering a sweeping cut in prison sentences that could bring early release for thousands of federal inmates.

The proposal being weighed by the U.S. Sentencing Commission would shave an average of at least two years off the sentences of 19,500 federal prisoners, about 1 in 10 in the 200,000-inmate system. More than 2,500 of them, mainly those who have already served lengthy sentences, would be eligible for release within a year if the rule is adopted....

The congressionally chartered commission, which sets sentencing guidelines for federal judges, has already adopted reduced penalties for new crack cases hitting the courts effective Nov. 1. That decision will affect about 4,000 a cases a year. The debate now is about its plans to make those changes retroactive to inmates. The seven-member commission is considering the proposal at a hearing Tuesday; a vote is expected next year....

The widely differing treatment of crack offenders is "fundamentally unjust," said Reggie B. Walton, a federal judge in Washington.... "It is one of the very important civil rights issues of our day," said Hilary O. Shelton, director of the Washington office for the National Assn. for the Advancement of Colored People, which has long pushed for changing cocaine laws.

Thursday, November 08, 2007

More of the crack facts and retroactivity arguments

The latest issue of Time has this article on the new crack guidelines, which includes this effective analysis of what's happening:

Drug dealers are bad guys, but even they should be treated fairly. That's why advocates of sentencing reform are cheering a recent federal move to narrow the jaw-dropping disparity in sentences for trafficking in two versions of the same drug, cocaine. But it's way too early for them to be declaring victory... [W]hile the new guidelines have reduced the penalties above the mandatory minimums, those minimums are still firmly in place....

What's more, even the changes in the guidelines will have only a limited effect unless the sentencing commission makes them retroactive — an issue it is expected to discuss at a Nov. 13 meeting. As of now, the new guidelines will affect only new offenders. If the commission decides to go retro, the move could shorten the prison terms for some 19,500 inmates by an average of 27 months.

On the "retro" front, the Sentencing Commission has now made available here some of the comments it has received from "the judiciary, the executive branch, interested organizations, members of the defense bar, and individual citizens." I especially liked Judge Richard Kopf's to-the-point pitch for retroactivity:

I urge the Commission to make the "crack" amendments to the Guidelines retroactive. Even though that will mean more work for judges, every conception of justice of which I am aware justifies such an action.

On its main webpage, the USSC also notes that it "received more than 33,000 letters from individuals expressing their views on retroactivity." Next week's USSC hearing on these issues ought to be a doozy.

Wednesday, November 07, 2007

USSC sets agenda for crack amendment retroactivity hearing

Over at its website, the US Sentencing Commission has posted this planned agenda for the public hearing scheduled for November 13 at Georgetown University Law Center concerning whether its amendments reducing the crack guidelines should be applied retroactively to previously sentenced defendants. The agenda suggests that this USSChearing should be a quite an event, with 18 speakers scheduled to speak (most of whom, I believe, will be advocating retroactivity).

Monday, November 05, 2007

DOJ and FPD advocacy to the USSC about crack amendment retroactivity

A helpful reader has made sure this blog could provide a full account of the debate over the retroactivity of the crack amendments by sending me the Justice Departments (anti-)retroactivity letter and the federal defenders (pro)retroactivity letter. These lengthy letters can be downloaded below:

Saturday, November 03, 2007

Judicial Conference urges retroactivity of new crack guidelines

Adding a very significant voice in the debate over making the US Sentencing Commission's new crack guidelines retroactive, the Criminal Law Committee of the Judicial Conference has sent a thoughtful and powerful letter to the USSC supporting retroactivity. This detailed letter (which was authored by Judge Paul Cassell on his last day as a judge) can be downloaded below. Here is the opening paragraph:

I am writing on behalf of the Judicial Conference’s Criminal Law Committee to recommend to the Sentencing Commission that its amendment lowering cocaine base (i.e., “crack” cocaine) penalties apply retroactively. While concerned about the impact that retroactivity may have on the safety of communities, a majority of the Committee believes that the Commission’s precedents, and a general sense of fairness, dictate retroactive application. The Committee also believes that the burden to the courts and probation officers associated with resentencings is not a sufficiently countervailing consideration. The Committee’s recommendation rests on the hope that the Commission will implement procedures to reduce the administrative burden on the federal judiciary associated with the resentencings that would attend retroactive application. The Committee is prepared to help develop and implement such procedures and respectfully suggests that the Commission do what it can to put them in place before applying its amendment retroactively.

Friday, November 02, 2007

Debate over retroactive application of new crack guidelines

This New York Times article spotlights that the Department of Justice officially opposes making the US Sentencing Commission's new crack guidelines retroactive:

Department of Justice officials said yesterday that applying the new guidelines retroactively would erode federal drug enforcement efforts and undermine Congress’s role in creating sentencing policy. “The commission is now considering applying the changes retroactively, something that Congress has not suggested in any of the pending bills,” wrote a department spokesman, Peter Carr. “As we state in a letter filed with the commission today, we believe this would be a mistake, having a serious impact on the safety of our communities and impose an unreasonable burden upon our judicial system.”

Meanwhile, Harlan Protass has this op-ed in the Los Angeles Times making the case for retroactivity. Here is how it ends:

Opportunities to neatly turn back time on social injustices are rare. The new crack sentencing scheme presents one such chance. The Sentencing Commission should take advantage of this opening. To do otherwise is to compound the mistakes made when Congress first introduced harsh penalties for crack offenses.

Wednesday, October 31, 2007

FAMM ready to roll on new crack guidelines

At its website, Families Against Mandatory Minimums has all this new content in conjunction with the effective date for the US Sentencing Commission's new reduced crack guidelines:

10/31/07 - Tomorrow heralds new day for crack cocaine sentencing. Effective November 1st, nearly 80 percent of defendants convicted of federal crack cocaine offenses will face sentences 16 months shorter on average, thanks to sentencing guideline reforms approved by the U.S. Sentencing Commission. However, if the amendment is not made retroactive, nearly 20,000 federal prisoners currently serving harsh sentences for crack cocaine offenses will not be eligible for relief. Read more

10/31/07 - Last day totell the Sentencing Commission to make crack guideline changes retroactive! October 31 is the last day to write the United States Sentencing Commission in support of making changes to the federal sentencing guidelines for crack cocaine “retroactive." All letters must be postmarked by Oct. 31. Click here to write a letter.

Wondering about the ripples of the truly consequential crack sentencing news

Though the de facto execution moratorium created by SCOTUS continues to get lots of attention (archive here), the most consequential sentencing news this week actually concerns drug sentencing. Specifically, as noted here at The BLT, tomorrow the US Sentencing Commission's new reduced crack guidelines become effective. And though this change will have the biggest impact if the USSC decides to make it retroactive — which could reduce the sentence of 20,000 current federal prisoners — a lot of folks should be impacted by the new crack change right away.

I have heard that a number of crack sentences have been put off while the USSC's proposed amendments were pending. If this is true, we ought to see a significant up-tick in drug sentencings over the next few months (and a blip in the USSC's drug sentencing data for the last fiscal year). In addition, there surely are many — perhaps hundreds or even thousands — of crack sentences current on appeal. I wonder how circuit courts will sort out reasonableness claims and other arguments once the new guidelines become effective.

Last but not least, I wonder if some defendants currently serving time under the old guidelines might bring new appeals even before the USSC decides on retroactivity. Arguably, the recent Wilson ruling from the Georgia Supreme Court adds heft to claim that sentences under the old guidelines are constitutionally problematic. Additional support for new constitutional arguments against the old crack sentence might come from commentary like this new Washington Times op-ed from J.C. Watts and Pat Nolan. Consider these snippets from their piece:

We are both conservative Republicans who are convinced that this country needs a more rational approach to apprehending and prosecuting those who traffic in cocaine.... [The 100-1 sentencing] disparity was passed in 1986 and based largely on the assertion that crack cocaine was more dangerous than powder cocaine, that it was instantly addictive and that it caused violent behavior. Since then, copious scientific evidence and U.S. Sentencing Commission analysis have shown that these assertions, which were not supported by sound data, were exaggerated or even outright false. The disparity has resulted in a hugely disproportionate number of black Americans sentenced under this mandatory-minimum law. While the intent was not to single out one racial demographic over another, the impact of these laws amounted to discrimination....

Federal authorities are squandering huge amounts of resources on small cogs in the cocaine distribution network: One-third of all federal cocaine cases involve an average of 52 grams, the weight of a candy bar. This is a terrible misuse of the time and talent of federal law enforcement and prosecutors. Plus, it has clogged the federal courts with cases that can easily be handled by the states.

Friday, October 26, 2007

Is there any principled basis for DOJ opposition to the crack amendment being retroactive?

Writing in the National Law Journal, Marcia Coyle has this effective article detailing the state of the debate over whether the US Sentencing Commission will make its new reduced crack guidelines retroactive. The piece is entitled, "Retroactivity for Crack Sentence Cuts Debated: More than 20,000 crack offenders could have their sentences reduced," and here are key snippets:

As the Nov. 1 effective date approaches for new and lower crack cocaine sentencing guidelines, the U.S. Sentencing Commission has received more than 1,000 public comments on a related proposal -- making those lower sentencing levels retroactive. The commission has extended the public comment period on the retroactivity issue and has scheduled a Nov. 13 public hearing.

The commission staff recently released an analysis of the impact of making the so-called "crack minus two" guideline amendment retroactive: Nearly 20,000 crack offenders could have their sentences reduced an average of two years or more.

The more than 1,000 public comments on the retroactivity issue heavily favor retroactivity, according to sources close to the commission's work. The outpouring of comments is unusual for most of the commission's work, but not for the crack cocaine issue, they say. This time the comments appear to be the result of intensive efforts by organizations that have long supported the commission's position that the 100-to-1 crack-powder cocaine sentencing disparity disproportionately affects minorities and low-level offenders and undermines the objectives of the nation's sentencing reform laws.

"We've launched a campaign to ask all of our members to explain to the commission that this is the right thing and the judicially efficient thing to do," said Mary Price, vice president and general counsel of Families Against Mandatory Minimums (FAMM). Besides FAMM, the commission also has heard from the American Bar Association, the American Civil Liberties Union, Federal Public and Community Defenders, the National Association of Criminal Defense Lawyers, their members and other organizations.

Yet to weigh in on the retroactivity issue is the U.S. Department of Justice. But spokesman Erik Ablin said, "We have not yet filed a comment, but we plan to do so by the Nov. 1 deadline. I can tell you that our comment will reflect our opposition to retroactive application."

I will be eager to see what DOJ has to say, because I have a hard time identifying a truly principled basis for resisting retroactive application of an amendment that the USSC has said is long overdue and that is supported by mountains of sound research and advocacy.

Of course, because so many offenders have been subject to unduly harsh crack guidelines, the practical consequences of making the new guidelines retroactive would be significant. But so would be the practical consequences of non-retroactivity — which might spark prison riots and surely would engender lots of litigation. Moreover, it would be particularly sad if our national "Department of Justice" fear or resist too much justice for certain defendants simply because it may require a lot of extra paperwork.

Thursday, October 18, 2007

Though perhaps I am trying to turn this into a "dogs not barking" story, I am very troubled to see that Eighth Circuit today apparently affirms a within-the-old-crack guidelines sentence in an unpublished Anders case in US v. Wanton, No. 06-3502 (8th Cir. Oct. 18, 2007) (available here). The facts are scarce in this unpublished disposition, but it appears that the defendant in Wanton pleaded guilty to distributing more than 50 grams of crack and received a bottom-of-the-range sentence of 135 months in prison. Since the Eighth Circuit has adopted a presumption of reasonableness for within-guideline sentences, perhaps it seemed obvious to the defense counsel that a sentencing appeal was friviolous.

But, with the US Sentencing Commission saying in powerful terms in May that the crack guideline are too harsh, and with the USSC's reduction in crack guildeines sentences becoming effective in a matter of weeks, and with the Supreme Court having just hear a crack sentencing case in Kimbrough, there ought to be a lot more to the story in Wanton. Indeed, unless the district court record demonstrates that the district judge was aware at sentencing of all these developments, I think it is a form of ineffective assistance for a defense attorney to assert that any appeal of a within-the-old-crack guidelines sentence is frivolous.

Tuesday, October 16, 2007

The Sentencing Project urges retroactivity of USSC crack amendment

As detailed here, the Sentencing Project "has submitted a letter to the United States Sentencing Commission urging it to apply retroactively a crack cocaine sentencing amendment passed this May to defendants previously sentenced for a crack offense." The full text of the lengthy letter can be accessed at this link, and here is a snippet:

The Commission has opted to make retroactive every amendment to a drug sentence that could be formulaically applied, i.e., in cases where the district court could calculate the new sentencing range using a simple mathematical equation. The Commission has followed the same pattern since it began requesting public comment in 2000.... [The crack amendment] fits squarely in the category of amendments that have been made retroactive. It can be easily applied by district courts in a formulaic manner. ...

To diverge from its paradigm in this particular instance would be particularly inappropriate given the racial implications of [the crack amendment]. Failing to make the amendment retroactive would perpetuate the already disproportionate effect of the severity of the Guidelines on African American defendants and poor urban neighborhoods.

Sunday, October 14, 2007

USSC schedules public hearing on crack amendment retroactivity

As noted on the US Sentencing Commission's website, the "Commission has scheduled a public hearing for November 13, 2007 at Georgetown University Law Center ... regarding whether Amendment 9 pertaining to offenses involving cocaine base ("crack") and Amendment 12 pertaining to certain criminal history rules ... should be applied retroactively to previously sentenced defendants." This official notice provides a bit more background and details on the hearing.

This should be a very interesting hearing, in part because it deals with a very important issue: as this recent USSC analysis details, the Commission's research "estimates that 19,500 offender sentenced between October 1, 1991 and June 30, 2007 ... would be eligible to seek a reduce sentence if the Commission were to make the 2007 crack cocaine amendment retroactive."

Saturday, October 06, 2007

Crack wackiness brewing over impact of crack amendments

As detailed here, this week the US Sentencing Commission posted an important memorandum titled "Analysis of the Impact of the Crack Cocaine Amendment If Made Retroactive" (available here). Families Against Mandatory Minimums is doing a great job covering this story at its website, but FAMM's coverage highlights that a lot of legal wackiness and uncertainty may ensure if and when the amendments become effect and are made retroactive. Here are the two recent postings at FAMM spotlighting these matters:

10/4/07 - Crack cocaine guideline amendment would improve sentences for 19,500 people if made retroactive. Yesterday the U.S. Sentencing Commission released its report on the estimated impact of the retroactive application of the so-called "crack minus two" guideline amendment it sent to Congress last May. The figures are significant and provide new hope that nearly 20,000 prisoners serving sentences for crack cocaine offenses could see their sentences reduced by an average of more than two years.Read more.

10/5/07 - Attention FAMM members: The crack amendment is not yet retroactive! Since announcing the U.S. Sentencing Commission’s report that 19,500 people could potentially benefit from the crack amendment, if it is made retroactive, FAMM has gotten many calls from members asking some important questions. We encourage all of our members to remember that the amendment is not retroactive yet, and may not become retroactive. Click here to download answers to some frequently asked questions.